FEJOFinnlanda Esperantista Junulara Organizo
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Nanna Nungala Fejo, as she prefers to be called, was born in the late 1920s.
Nanna Fejo's family had been broken up for a second time.
(23) Ibid 439 [31], citing Fejo v Northern Territory (1998) 195 CLR 96, 128 [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
(32) See, eg, Wik (1996) 187 CLR 1; Fejo v Northern Territory (1998) 195 CLR 96; Yanner v Eaton (1999) 201 CLR 351; Commonwealth v Yarmirr (2001) 208 CLR 1; Ward (2002) 213 CLR 1; Wilson v Anderson (2002) 213 CLR 401; Yorta Yorta (2002) 214 CLR 422.
The author, in Chapter 3, is highly critical of the Fejo decision (1998) that a grant of fee simple title necessarily extinguishes native title for all time, and writes (p.41) that: 'The importance of understanding native title as a site of mutual recognition between two peoples and two systems of law found no expression'.
The potential was there for this idea to soften the hard edges of the Fejo decision, which had cast native title as a title highly susceptible to extinguishment.
The difficulties of developing consistency and equality within the tenure regime were alluded to in Fejo, where Kirby J held:
(160) The decision in Fejo once again perpetuates the subordination of native title to the common law doctrine of tenure.
(44) Fejo v Northern Territory (1998) 195 CLR 96, 126 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) ('Fejo'), quoting Commonwealth v New South Wales (1923) 33 CLR 1, 42 (Isaacs J), in turn quoting Charles Sweet, Challis's Law of Real Property: Chiefly in Relation to Conveyancing (3rd ed, 191 l ) 218.
(112) Mabo (1992) 175 CLR 1, 69 (Brennan J), later confirmed in Fejo v Northern Territory (1998) 195 CLR 96 ('Fejo'), although the issue of Crown to Crown grants was not determined.
This has been recognised in subsequent decisions, including that of the High Court in Fejo, a case which concerned the effect of the grant of a fee simple estate on native title rights.
In Ward, the majority described an `inconsistency of incidents' test, established by the High Court in Wik, confirmed by it in Fejo and applied by the Full Federal Court in Yarmirr.